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‘Participation’ does not mean sitting in judgement in a hybrid court

After a hectic week at the 34th session of the United Nations Human Rights Council in Geneva, the Sirisena-Wickremesinghe administration is now in a position to heave a sigh of relief as the resolution on Sri Lanka granting a two-year extension was passed without a vote at the Council, on Thursday.

This means Sri Lanka will have two years to fulfil its international obligations in terms of accountability and reconciliation, as per the UNHRC resolution passed in October, 2015 – a month after the national unity government’s rise to power.

The resolution requested the UN Human Rights Commissioner to continue to assess the progress on the implementation of its recommendations and other relevant processes related to reconciliation, accountability and human rights in Sri Lanka, and present a written update to the Human Rights Council at its thirty seventh session, and a comprehensive report, followed by a discussion on the implementation of the council resolution 30/1, in its fortieth session.

Presenting his report to the 34th session, UN Human Rights Commissioner reiterated the need for the involvement of foreign judges and prosecutors in the accountability process in Sri Lanka.

He also emphasized the need for speedy measures to set up the Truth and Reconciliation Commission and the Office on Missing Persons (OMP), as recommended in the resolution in October, 2015.

At the same time, the UN Human Rights Commissioner appreciated the Sri Lankan government’s positive engagement to ensure accountability and reconciliation in the country, after a three-decade long war.

He also welcomed the report by the Consultative Task Force on Reconciliation Mechanism (CTFRM) and requested the Sri Lankan government to make use of it. The report’s main recommendation, the establishment of a hybrid court with the involvement of foreign judges, has come under criticism from many circles in the local political domain.

The other important recommendation in the High Commissioner’s speech is to adopt a mechanism to implement the proposals in resolution 30/1 within the next two years.

Deputy Foreign Affairs Minister, Dr. Harsha de Silva led the Sri Lankan delegation at the interactive dialogue on the High Commissioner’s report as Foreign Minister, Mangala Samaraweera was accompanying the President in Russia.

Sri Lanka’s engagement

In his speech at the interactive dialogue, the Sri Lankan Deputy Foreign Minister officially announced that Sri Lanka would be co-sponsoring the new resolution.

“No country’s human rights record is perfect. It is always work-in-progress. The people of Sri Lanka have been through extremely difficult and painful times, and although much has been done, there is much still left to do, including, strengthening our institutions and achieving economic progress. There are multiple challenges that we face. But, as a responsible and committed Government, under the leadership of President Sirisena and Prime Minister Wickremesinghe, we are determined to stay the course,” de Silva said.

However, it was clear that there was a gap between the expectations of the international community and the objectives of the Sri Lankan government over the “hybrid court”.

The leaders of the government, including the President and the Prime Minister, made it clear that allowing foreign judges to hear cases in Sri Lanka was not in line with the Constitution. It is against this backdrop that the Deputy Foreign Affairs Minister went on to explain the Sri Lankan government’s position on foreign judges, a day after the adoption of the resolution.

Participation of foreign judges

“I think it’s best that I try and clear the confusion. What the 2015 resolution 30/1 says in terms of foreign and Commonwealth involvement is that there should be ‘participation’ of inter alia foreign and Commonwealth judges, within a Sri Lankan judicial mechanism,” he said, in a post on his social media profiles.

“Participation has multiple definitions. What certain sections are trying to say is that ‘participation’ means a ‘hybrid court’ that consists of foreign judges sitting on the bench hearing cases. By misleading the public into equating ‘participation’ to ‘hybrid’ some Sinhala groups claim, the Government sold out and some Tamil groups claim, the Government gave in.”

“What the President and the Prime Minister and also the Foreign Minister have said is, that is NOT the case. There won’t be any hybrid court for several reasons, but, from a legal and technical perspective, because the Sri Lanka Constitution does not allow foreign judges to sit in judgment; in other words ‘participation’ cannot mean ‘hybrid’. Surely, it is not something that difficult to understand.”

“It is in this context that the word ‘participation’ takes shape. It can mean ‘expertise’ or ‘observation’ or any such other, but NOT hearing cases. During MR’s time as well there were instances, including where the Indian Chief Justice Bhagwati also was involved in both ‘expertise’ and ‘observation’. There are several other examples including Darusman, the former Attorney General of Indonesia.”

“So, it is only to mislead the people that certain elements will use the word ‘participation’ to mean ‘sitting in judgement’ in a ‘hybrid court’ to suit their narrow political agendas. I urge the public not to be misled.”

“Plus, there are many other more important things. A compassionate council on a truth mechanism might be something that can deal with all these issues, instead of courts. The Missing Persons Office has already been legislated. Handing back private land is continuing. All these are what we should focus on.”

What the Deputy Foreign Affairs Minister makes clear is that Sri Lanka will not be able to completely rule out foreign judges and prosecutors in its war crimes investigation and prosecution. What can be negotiated, however, is the level of their engagement.

The differences over the involvement of foreign judges aside, the Sri Lankan government will have to take meaningful steps in the direction of accountability and reconciliation within the next two years, which includes the establishment of the Truth and Reconciliation Commission and the Office of Missing Persons.

While ensuring a credible mechanism locally, the government will have to communicate its position on hybrid courts to the international community, including the member nations of the UNHRC, in a convincing manner. The success of this attempt will also hinge on Sri Lanka’s ability to ensure independence and impartiality of the judiciary, especially, when it comes to cases involving the military.

It is a widely-held perception, especially, in the international domain, that the cases involving the military are not heard objectively and impartially in the Sri Lankan judiciary due to various sensitivities involving the war heroes. While the government is sensitive about political repercussions of such cases, the opposition tries its best to politicize these issues and achieve petty political gains. This hampers Sri Lanka’s plans for a Sri Lanka-led credible war crimes investigation mechanism.

Sunil Ratnayake example

One such example was the case involving Sunil Ratnayake, a former staff sergeant attached to the Sri Lanka Army, who was found guilty for the murder of eight Tamil civilians in Mirusuvil, Jaffna in 2000. The Colombo High Court sentenced him to death after a 13-year-trial.

In fact, the government prosecuted Ratnayake when former President Mahinda Rajapaksa was in power. Unfortunately, after the verdict was given, the Joint Opposition, led by the former President himself, openly attempted to politicize the clamouring that the ‘yahapaalanaya government’ had sent war heroes to the gallows.

The Joint Opposition event launched a political campaign to seek clemency for the convicted soldier and financially support his family. By doing so, the Rajapaksa group tried to pander to the most chauvinistic sentiments of the traditional Sinhala Buddhist electorate.

The same trend could be seen in the attacks on journalists over which fingers were pointed at the members of the security forces. Several members of the military were arrested by the CID in connection with the murder of former Sunday Leader Editor, Lasantha Wickrematunge and brutal assaults on Keith Noyahr and Upali Tennakoon.

When the law enforcement authorities launched investigations into these incidents, the Joint Opposition group said the government was on a witch-hunt against the war heroes. It is difficult to say whether the judiciary can escape the impact of this false propaganda campaign.

It is against this backdrop that the current administration will have to show the UNHRC and other members of the international community that it has the political will to ensure a credible accountability and reconciliation mechanism. If the government fails in this, however, the hybrid court may seem like an inevitability, in another two years.

With the outcome of the UNHRC session so far, several key international players, including the United States, have expressed their support to the Sri Lankan government.

US welcomes

Introductory Statement by the United States, delivered by William J. Mozdzierz, appreciated the Sri Lankan government’s approach towards reconciliation and accountability.

The United States thanks Sri Lanka, our fellow core group members, the United Kingdom, Macedonia, and Montenegro, and all other member states and stakeholders for their cooperative engagement on this resolution.

He said, “This resolution reflects our continued strong commitment to peace, justice, and reconciliation for all the people of Sri Lanka. It recognizes both, the important steps that Sri Lanka has taken toward protecting human rights and fundamental freedoms, and also the need for full implementation of the remaining steps to ensure the consolidation of these protections. Sri Lanka’s co-sponsorship of this resolution is a testament to the Sirisena administration’s positive engagement with the international community and commitment to improving the lives of all Sri Lankans.

We look forward to the adoption of the text, which further commits the Government of Sri Lanka to pursue a process of reconciliation and justice for two more years. It is our sincere hope that this process can help ensure a non-recurrence of conflict and the strengthening of democratic institutions for all Sri Lankans.”

Sarath Weerasekera saga

Former Parliamentarian Sarath Weerasekera flew to Geneva last week to present what he termed a special report on war crimes allegations against the Sri Lankan military forces, to the UNHRC session.

The former Parliamentarian said, his report contained evidence to ‘protect’ Sri Lanka’s war heroes from foreign prosecutors.

Although Weerasekera’s supporters told the local media that Weerasekera will present a special report to the UN Human Rights Commissioner, a spokesperson from the UNHRC Chief’s office said no one requested a meeting with the High Commissioner.

Instead, he attended a side event in Geneva, like many other Sri Lankan NGO activists and diaspora group members.

Addressing the UNHRC side event, the former UPFA Parliamentarian urged the United Nations General Assembly to appoint a Special Rapporteur into the alleged war crimes committed by the LTTE during the Eelam war.

Weerasekera spoke at a side event titled ‘Truth and Justice’ organized by the International Buddhist Relief Organization (IBRO), a non-governmental organization with UN accreditation.

“Weerasekera’s request internationalizes Sri Lanka’s issue. It is a 180 degree turn from the government’s stance which suggests a Sri Lanka-led process for reconciliation and accountability. Weerasekera clearly calls for a foreign intervention,” representatives of the government told the Srj Lankan media, on Tuesday.

Speaking at the side event, Weerasekera said, the Sri Lankan armed forces did not commit any war crimes during the final phase of the Eelam war. This statement was challenged by a representative from the TGTE who said over 300,000 Tamils were killed during the government’s military operation. The representative urged the Swiss government to arrest Weerasekera stating the latter was responsible for the matter.

The TGTE even went on to issue a statement urging Switzerland to exercise universal jurisdiction to arrest the former Navy officer turned politician.